Bheem Raj Jain vs Municipal Council And Ors

These two writ petitions have been filed by the petitioner laying challenge to the orders dated 27.04.2018 passed in the two suits filed by him being Civil Original Suit No.185/2011 & No.186/2011.

As the facts are identical, they are being decided conjointly, but the facts of the Writ Petition No.18196/2018 are being taken into consideration for the sake of convenience.

The petitioner-plaintiff had filed a suit for mandatory injunction and claiming compensation from the defendants. After completion of the pleadings, the petitioner filed his affidavit in evidence on 26.05.2017, but did not turn up thereafter, for cross-examination so as to complete his evidence.

The record of proceedings of the trial Court reveals that after filing of affidavit in evidence, the plaintiff/his counsel continued to seek time for completion of his evidence on 10.8.2016, 26.8.2016, 17.1.2017, 13.2.2017, 20.3.2017 and 26.5.2017 for one reason or the other. The talks of compromise between the parties were under way for which the matter was placed before the ensuing Lok Adalat on 8.7.2017. The matter however could not be amicably settled in the Lok Adalat and it was taken up for consideration on 22.08.2017.

On 22.08.2017, the petitioner did not appear and the matter was listed on 09.10.2017, before the Court and on the said date also, the matter was adjourned to 01.12.2017.

Lastly the matter was listed on 05.02.2018, on which date the petitioner did not appear for completion of his evidence and the trial Court left with no option but to close his evidence, proceeded to take away petitioner's right of leading evidence and posted the case for evidence of the defendants on 20.2.2018.

After closure of the evidence and participating on two hearings, the petitioner moved an application on 21.03.2018 for recalling the order dated 20.02.2018 and reopen his evidence. The matter was thereafter listed before the trial Court on 27.4.2018 for consideration of the application dated 21.03.2018. The trial Court rejected the same vide its order dated 27.04.2018 interalia observing that the petitioner has been granted about 35 opportunities to lead his evidence, but he had paid no head to lead his evidence. The trial Court also observed that despite indicating in his application that for last two months the petitioner had gone to Bombay for his treatment, the plaintiff has produced no documentary evidence in this regard.

Mr. Shambhoo Singh, learned counsel for the petitioner submitted that the trial Court has firstly erred in closing the petitioner's evidence and then refusing to grant one more opportunity by rejecting the application dated 21.03.2018, vide its impugned order dated 27.04.2018. Learned counsel also contended that the trial Court ought to have applied justice oriented approach and should have granted him one opportunity may be at cost.

Having heard learned counsel for the petitioner and upon perusal of the material available on record, this Court is of the firm view that the petitioner is not entitled for sympathetic or equitable consideration, looking to his own conduct. The facts stated hereinabove clearly highlight the callous and casual attitude of the petitioner, inasmuch as he had taken adjournment after adjournment for completion of the evidence in case, which had been filed by none other than him.

It is rather surprising that the impugned order refusing to open the petitioner's evidence had been passed way back on 27.04.2018, yet the petitioner did not get up from his slumber and has approached this Court only on 2.12.2018, after about passing of seven months. Much water has flown down the river under the bridge in the meanwhile.

Looking to the conduct of the petitioner and his lackadaisical attitude, this Court is not inclined to exercise its discretionary power vested under Article 226/227 of the Constitution of India; particularly when the petitioner himself has been apathetical to his own cause. It is equally disturbing that despite visiting observation of the trial Court that the petitioner has not produced any documentary evidence in relation to his indisposition, the petitioner has not bothered to file any ocular evidence to satisfy this Court that during the period interregnum, he was actually suffering from ailment and undergoing treatment.

Unwarranted indulgence in the matters like this would breed lethargy and encourage indolence towards the process of law and very justice delivery system.

In view of the discussion foregoing, both the writ petitions are dismissed.

A copy of this order be sent forth with to the concerned Court.